Sam Bayard's blog

Derek Bambauer at Info/Law has an excellent post on the Harry Potter Lexicon lawsuit, Rowling v. RDR Books. Bambauer analyzes Rowling's copyright claim and RDR Book's fair use defense and concludes that the celebrity author will likely prevail. While reasonable minds differ on this point (see, e.g., Tim Wu's article in Slate), everyone should be able to appreciate Bambauer's use of figurative language:

Fair use is like gumbo: you dump everything in together, mix it, simmer, and see how it tastes in the end.

An apt description -- it captures colorfully the inherent difficulty in predicting the outcome of a court's fair use analysis. The district judge handling the case has decided to combine the previously scheduled preliminary injunction hearing with a trial on the merits, which is set to begin April 14. We're looking forward to a good meal.

Below is a video explaining how to use PreCYdent, a new resource for free online court opinions.
The coverage of the database is quite impressive -- Supreme Court cases going back to 1759, federal appellate cases going back to 1950, and a good number of federal district court cases since 2004. The site also has a sophisticated search engine and lots of neat Web 2.0 features like a browser widget and a Facebook application. For more, see Robert Ambrogi's detailed post from January 2008.

Last week, Republican Tim Couch of Kentucky introduced a bill in the state legislature that would impose criminal fines on Kentucky-based website operators who fail to collect "a legal name, address, and electronic mail address" before allowing a user to post a comment. The proposed law would also require website operators to "establish reasonable procedures to enable any person to request and obtain disclosure of the legal name, address, and valid electronic email address of [a user] who posts false or defamatory information about the person."

Breaking news from Above the Law: Anthony Ciolli, former defendant in the controversial AutoAdmit case, has filed a lawsuit in Pennsylvania state court against the two plaintiffs in that case, their lawyers, ReputationDefender and one of its employees, and the shadowy "T14 Talent." He alleges wrongful initiation of civil proceedings, abuse of process, libel,
slander, false light invasion of privacy, tortious interference with
contract, and unauthorized use of name or likeness. It looks like Ciolli has outed one of the pseudonymous defendants in the AutoAdmit case -- "pauliewalnuts."

Update: I didn't mean to be snarky about this lawsuit. Assuming that his allegations are true, I have a lot of sympathy for Ciolli, and he appears to have some actionable claims. Marc Randazza, his attorney in the AutoAdmit case, has a thoughtful post on the new lawsuit.

The preemptive legal threat, while not as worrisome as preemptive war, is a pretty unsavory tactic. Don't know what I mean by "preemptive legal threat?" Not to worry, here is an example. The Wall Street Journal's Law Blog reports that a lawyer for Denver Nuggets coach George Karl has threatened blogger Andrew Feinstein with legal action (well, sort of). Feinstein, a frustrated Nuggets fan, created a blog called Fire George Karl, lamenting what he sees as a series of "blown games, losses against sub-.500 opponents, porous defensive performances and incoherent offensive schemes." Last Tuesday (Feb. 26), Karl's lawyer, Bret Adams, sent Feinstein an ominous email:

Is your life really this boring and meaningless that you would spend the hours necessary to create such a website?

As Coach Karl’s counsel I am putting you on notice that I will sue you into bankruptcy should you cross the boundaries of permissible
speech.

Note that there's no claim here that Feinstein has defamed the coach or done anything else worthy of a lawsuit. The message is different, something akin to "I'll be watching you. Conduct yourself accordingly." This is a jarring message for a blogger of ordinary means to receive (not that anyone wants to be "sue[d] . . . into bankruptcy"), and it's clearly intended to exert a chilling effect on critical speech.
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Eric Goldman published an interesting post yesterday about a new case, Lifestyle Lift Holding, Inc. v. Real Self, Inc., which is a trademark dispute involving RealSelf.com,
an interactive website with forums that let consumers discuss their
experiences with cosmetic and plastic surgery procedures and vote on
whether a procedure was "worth it" or "not worth it." Lifestyle Lift owns the trademark "Lifestyle Lift," which it licenses to doctors who perform facelift procedures under that name. A number of RealSelf users have written negative reviews of the Lifestyle Lift procedure, with 55% of users currently saying that the procedure was "not worth it."

The complaint, filed in federal district court in Michigan, alleges federal trademark infringement, unfair competition, and a violation of the Michigan Consumer Protection Act based on the website's use of Lifestyle Lift's trademark. Goldman writes about the case:
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The AutoAdmit case (formerly Doe v. Ciolli) never fails to satisfy. If the whole situation were not absurd enough already, one of the pseudonymous posters going by the handle "AK47" has filed a motion to quash a subpoena issued by the plaintiffs to AT&T seeking information about his identity. The plaintiffs apparently were able to tie a comment attributed to AK47 in the Amended Complaint to an IP address owned by AT&T. (I'm not going to reproduce the statement here, but if you're interested, his pointless and despicable comment is found in paragraph 49 of the Amended Complaint.)

Back in January, the federal district court in Connecticut authorized the plaintiffs to issue subpoenas to a number of ISPs, universities, and websites demanding information about
the identities of the the pseudonymous posters named in the lawsuit. According to AK47's brief in support of his motion to quash, he received notice of the subpoena from AT&T on or around February 18, and it stated that he had ten days to take legal action to prevent AT&T from divulging his information. Instead of filing a motion to quash in California federal court, AK47 took action in federal court in Connecticut, where the main action in the lawsuit is taking place.
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No, this isn't about the Megan Meier suicide debacle. It's about another, older but equally tragic episode. The family of a fifteen-year-old girl who committed suicide in 2006 after a sexual relationship with a twenty-seven-year-old man she met on MySpace is suing the popular social networking site for negligence and violation of products liability law (i.e., for creating and distributing a defective product). The crux of the complaint is that MySpace negligently "provided an unprotected social networking site absent of any legitimate means of preventing contact bretween sexual predators and minors." Compl. ¶ 1. The family filed suit against MySpace in state court in Texas in December 2007, also naming as a defendant Kiley Ryan Bowers, the man who allegedly had a relationship with the deceased. Wired has a good article with more details.
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(The CMLP and this website are in no way affiliated with the CyberLaw firm. You can find the CyberLaw firm's website here. We are using the mark for purposes of news reporting and criticism.)

Limited in this way, Menhart's application is no longer quite so ridiculous and no longer poses a threat to lawyers and scholars specializing in Internet law (not that it was ever much of a credible threat). Not content to swallow his pride and acknowledge his mistake, Menhart went out with this final swipe in a statement to the Baltimore Sun:
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Ars Technica reports that the International Olympic Committee has lifted its ban on blogging. Athletes competing in Beijing 2008 will be allowed to blog about the Olympics, so long as they follow some, well, restrictive guidelines. Most notably, athletes will not be permitted to report on the overall competition or relay information from third parties; instead, the guidelines require that they focus on their own personal experiences. This is because, in the IOC's view, blogging is "a legitimate form of personal expression and not a form of journalism." Whew, I'm glad they resolved that tricky ontological question.

Additionally, athlete bloggers may not post any photographs of the sporting events (although they may post their own photos from inside and outside official Olympic areas), and their posts must be "dignified and in good taste." They also may not host any advertisements or create an affiliation with a specific company (fair enough). It's easy to make fun of all these restrictions, but it is a step forward, and it may make for some fascinating material, even within the guidelines.

Or will it? As if all these rules weren't enough, recall that the Chinese government also filters the Internet in a serious way. According to Ars,
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Representatives Ed Markey (D-MA) and Chip Pickering (R-MS) introduced a new net neutrality bill before the U.S. House of Representatives yesterday. Net neutrality refers to the (surprisingly) controversial idea that all Internet traffic should be treated equally. If passed into law, the bill, H.R. 5353, would proclaim that it is the policy of the United States to, among other things, "maintain the freedom to use for lawful purposes
broadband telecommunications networks, including the Internet, without
unreasonable interference from or discrimination by network operators,
as has been the policy and history of the Internet and the basis of
user expectations since its inception." Bravo.
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On Monday, a prominent couple from Old Hickory, Tennessee sued three anonymous defendants
for defamation and invasion of privacy over statements appearing on the Stop Swartz
blog and craigslist. The plaintiffs, Donald and Terry Keller Swartz, buy and sell a lot of real estate in Old Hickory, and a bit of local political maneuvering on their part seems to have earned them some enemies. The purpose of the Stop Swartz
blog, which criticizes the Swartzes' real estate activties and other aspects of their personal and political lives, is self-described as sharing "the truth about Don and Terry and their actions and activities in and around Old Hickory," and it encourages readers to submit their own "Swartz incident[s]."
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A California appellate court issued a new anonymity decision yesterday in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008). (For background on the facts of the case, see the CMLP database entry, Krinsky v. Doe 6.) In line with the recent trend towards increased protection for anonymous speech online, the California court came out with a test that puts a significant evidentiary burden on a plaintiff before allowing disclosure of an anonymous Internet speaker's identity.

The court explicitly rejected the lenient "good
faith" standard applied in In re Subpoena Duces Tecum to America Online,
2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), indicating that this
test "offers no practical, reliable way to determine the plaintiff's
good faith and leaves the speaker with little protection." Interestingly, however, the court
also declined to follow Doe v. Cahill,
884 A.2d 451 (Del. 2005), arguing that the "summary judgment"
terminology used in that case is "unnecessary and potentially
confusing."
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I've blogged before about the Savage v. CAIR lawsuit, in which the conservative talk show host claims that CAIR violated his copyright (and the Racketeer Influenced and Corrupt Organizations Act!) by posting and commenting critically on an audio clip from one of his shows, in which Savage makes all sorts of hateful and inaccurate claims about Muslims and the Islamic faith. To put it mildly, I disagree with Savage's position in the lawsuit -- it is a blatant attempt to misuse copyright law in order to squelch criticism.

Great news! The Electronic Frontier Foundation and Davis Wright Tremaine LLP are representing CAIR, and they have filed an answer and moved for "judgment on the pleadings," asking the court to dismiss the lawsuit because it is "simply a camouflaged defamation or disparagement claim dressed as bogus
copyright and RICO claims . . . Savage's legal broadside specifically
targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric." (from the EFF). The brief arguing in favor of dismissal is excellent. Its introductory argument on the copyright claim is worth reproducing here:
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In a project headed by Associate Professor Geanne Rosenberg, CUNY's Graduate School of Journalism has launched a new website -- Top 10 Rules for Limiting Legal Risk. The project, which is carried out in collaboration with the John S. and James L. Knight Foundation and the Knight Citizen News Network, aims to provide training to citizen journalists on the legal rights and responsibilities that go along with newsgathering and online publication. From the press release:

"We are pleased to provide this resource to citizen journalists," said Stephen Shepard,
dean of the journalism school. "The law in this area is rapidly developing, and citizen journalists don’t have the resources of a legal department to draw upon. Many of the rules are based on the same principles of fairness and caution that we teach to professional journalists at the school," Shepard
added.

"This vital module with advice that could help keep bloggers out of jail is a great new addition to the Knight Citizen News Network, which already is the best one-stop-shop site for citizen journalism training," said Gary Kebbel, journalism program officer at Knight Foundation.

Basically, it's right up our alley AND its got some nifty videos in the teaching modules featuring David Ardia, the CMLP's co-founder and director, and yours truly. Self-aggrandizement aside, the website looks great and its ten rules are organized around practical strategies rather than legal doctrine, which makes it user-friendly.

Last Thursday, the plaintiffs in the AutoAdmit case filed a motion for expedited discovery, seeking permission to serve subpoenas on a number of ISPs, universities, and websites demanding information about the identities of the the pseudonymous posters named in the lawsuit. (For background on this case and links to the court documents, see the CMLP database entry, Doe v. Ciolli.) The plaintiffs believe that these ISPs, institutions, and websites either assigned IP addresses to some of the defendants, were used by some defendants to send email, or have relevant IP addresses because some defendants visited their sites shortly before posting on AutoAdmit threads.

Before filing the motion, the plaintiffs informally contacted AutoAdmit and its administrators, several ISPs, hosting providers, and others, requesting that they voluntarily turn over identifying information about the pseudonymous posters. All of the recipients refused, and now the plaintiffs want the court's help to make them comply. Unfortunately for the plaintiffs, it looks like many of the recipients do not have the information that they're looking for anyway. Many indicated that they do not compile logs of the information sought or had already disposed of those logs before being contacted by the plaintiffs.
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I previously blogged at length about Mario Lavandeira's victory under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16) in the libel lawsuit brought against him by celebrity DJ and Lindsey Lohan pal Samantha Ronsen. Now, my RSS feeds are clogged with reports that the California court has awarded Lavendeira nearly $85,000 in attorneys fees under the anti-SLAPP statute. I guess that's what happens when you mess with a blogger with some resources! Kudos to Bryan Freedman, Lavandeira's attorney, for defending this case so successfully.

Chris Soghoian at CNET Blogs published an interesting post yesterday -- Did Slate violate copyright law? It talks about a hilarious mashup video that Slate posted a few days ago called Hillary's Inner Tracy Flick, which juxtaposes images from the 1999 film Election and current footage of presidential hopeful Hillary Clinton. The mashup plays on the earnestness and ambition shared by Hillary and Reese Witherspoon's character in the movie -- Tracy Flick, a hyper-driven high school student seeking election as class president.

The clip is made up completely of preexisting footage, but it manages to pull off something novel, funny, and politically poignant. As Cynthia Brumfeld writes on IP Democracy:

Nothing in this video is 'original' although the video itself is without a doubt a work of originality and creativity. It also
brilliantly makes a political point.

Brumfeld's post is worth reading in its entirety; it uses the Slate mashup to contrast the differing views on fair use held by ubiquitous Columbia law professor Tim Wu and NBC counsel Rick Cotton, as found in the excellent online debate on remixing and fair use published in the New York Bits Blog last week (another must read). I believe, and Wu and Brumfeld would agree, that the Slate mashup is a fair use because it is clearly transformative and it adds value to the original rather than substituting for it.
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Earlier this week, a promotional/inspirational video for the Church of Scientology featuring Tom Cruise began circulating online. The video is bizarre -- against the background of what sounds like the Mission Impossible theme, Cruise extols the virtues of Scientology and urges viewers to embrace its ethics and worldview. Among many, many other things, he drops gems like "We are the authorities on getting people off drugs. We are the authorities on the mind. We are the authorities on improving conditions" and "We are the way to happiness. We can bring peace and unite cultures."

Some might say that the clip has only gossip value, but others assert that it reveals something about Cruise's position within the controversial organization (which to some may still have only gossip value). Nevetheless, it has caused some complicated legal maneuvering this week. From Gawker:
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This is terrible news. CNN and TechCrunch reported Friday that city officials in central China beat a man to death for attempting to record a protest on his mobile phone. Apparently, there was some sort of confrontation between villagers in the central Chinese province of Hubei and local municipal "inspectors" over the dumping of waste near the villagers' homes. When Wei Wenhua, a 41-year-old construction company executive, tried to film the altercation with his camera phone, a group of more than 50 of the inspectors attacked him, beating him for five minutes, according to China's Xinhua news agency. Government investigators later recovered Wei's mobile phone, but the video had been deleted.

It is not entirely clear whether Wei's filming was a spontaneous act of citizen journalism by a complete amateur, or whether he was a blogger trying to cover the story. The headlines on CNN and TechCrunch both refer to Wei as a blogger, but neither article gives any details on his blogging activity, and the CNN articles says that he "happened on [the] confrontation."

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